The shooting at Marjorie Stoneman Douglas High School in Parkland, Florida, on February 14, 2018, left 17 students or teachers dead, and an expelled 19-year-old, Nikolas Cruz, in police custody. The shooting triggered a nationwide “Enough is Enough!” march in Washington and across the nation against guns and the National Rifle Association, and Florida’s governor, Rick Scott, signed into law new restrictive gun rules.
More states may do likewise. But will it help to reduce the number of killings with hand or semi-automatic guns? One suggestion has been to arm as many teachers as are willing to shoot a shooter. Is this a good idea?
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“As a general matter, the United States Supreme Court has held that the Due Process clause of the Fourteenth Amendment does not require the state to protect the life, liberty, and property of citizens from private violence,” wrote Tia J. Combs, a Kentucky attorney, in “The Perils of Arming School Staff,” For the Defense. [Defense Research Institute, Chicago, June 2017, Pages 40-45, citing DeShaney v. Winnebago City Dept. of Social Services, 489 U.S. 189 (1989)].
This U. S. Supreme Court decision raises questions of how far a school and its faculty can go in terms of “protecting” students. “Although most courts addressing whether schools stand in a DeShaney special relationship with their students have held that they do not; they may create legal problems [if] the districts choose to arm non-law enforcement school staff.”
Combs explains that in the DeShaney decision, which involved a parent’s abuse of a minor, “the Court left open the possibility that states might be liable to those injured by third parties by creating two exceptions that may create a state duty to protect or take responsibility for an individual’s well-being: a state may have a duty (1) when the state and the individual have a special relationship; or (2) when the state has created the danger.”
She says that such exceptions may apply in the case of school shootings or other violence. “Awareness of violence in schools is higher than ever. In one case, the Tenth U.S. Circuit Court of Appeals in Graham v. Independent School District, [No. I-89, 22 F.3d 991 (10th Cir., 1994.)] lamented, ‘We are poignantly aware of the seeming transformation of our public schools from institutions of learning into crucibles of disaffection marred by increasing violence from which anguish and despair are often brought to homes across the nation.”
Schools may post that they are “gun free,” under the Gun Free Schools Act, 18 U.S.C. §922(q), but does this also include the teachers? “Careful legal analysis shows that putting guns in the hands of teachers might create more problems than it solves,” Combs concludes.
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Schools are a different entity
There are special situations involving schools. In most jurisdictions, the public school system is separate from other governmental entities. In a few states, all schools are under a state board of education, but in many, it is the local school board, county or regional school administration that has responsibility for school-related functions.
In many states, smaller school systems may join risk retention pooling programs to obtain insurance coverage or administer self-insured layers of various exposures, including liability, property and employment-related risks. Whatever the system of risk financing involved — and most are quite complex — the exposures to schools are tremendous.
With the “rash” of school shootings in the late 1990s (Pearl, Mississippi; Jonesboro, Arkansas; Paducah, Kentucky; Littleton, Colorado; and Conyers, Georgia, etc.), many schools have become guarded institutions with rules that risk allegations of civil rights violation, including personal search and seizure without a warrant. The local board of education, school administrators, and teachers may become legally liable for almost any fortuitous event that occurs, including, in some cases, students’ failure to learn.
Next month we shall examine what sort of investigation an adjuster needs to undertake in a school liability claim.
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Ken Brownlee, CPCU, (kenbrownlee@msn.com) is a former adjuster and risk manager based in Atlanta, Ga. He now authors and edits claims-adjusting textbooks. Opinions expressed are the author’s own.